Retired Virginia judge Stephen Rideout explains the legal process for termination of parental rights (TPR) proceedings:

There’s a federal law about how states should handle child welfare cases, called ASFA, which requires that child welfare agencies file for termination if the child has been in foster care for 15 of the past 22 months, unless the agency can provide the court with a valid reason not to do that.

However, each state has its own law that gives the court direction on what it can and cannot do, so what a court in Iowa might do can be different from what a court in California might do. In addition, different states or counties have different practices, and, judges have different views about their roles and so do lawyers. So decisions will be different state-by-state, lawyer-by- lawyer and judge-by-judge.

That said, states or local agencies normally file to terminate the parents’ rights because the agency feels that the parents have failed to do what the court has ordered them to do to get their lives in order and get their chil- dren back. If the parent—because of substance abuse, mental health issues, family violence, or other reasons— cannot safely raise the child after 15 months, the agency is forced by law in many cases to seek termination.

The Parent on Trial

The TPR process takes place in court. It’s a trial. The parent is entitled to a lawyer, the child is entitled to a lawyer and the agency usually has a lawyer. Evidence is presented, and the judge makes a decision about whether the agency has proved its case.

The judge hearing the TPR trial can be the same judge the family has been with all along, or some states require that a different judge make the TPR decision. If a parent feels that the judge is prejudiced, she may ask for a different judge to hear the termination case.

The fact that an agency files for termination does not mean that the judge will terminate rights. There are a number of reasons that a judge would choose not to terminate: if the parent has made progress; if the child is living with a family member; if the child is older and does not want termination or adoption; if the termination is not in the child’s best interest because of a bond with the parent; if the parent will complete drug treatment or a prison sentence in a reasonable amount of time; or if the agency has not made reasonable efforts to provide needed services to support reunification.

The judge can also make a finding that the agency has proved its case but give the parent more time. In that case, the judge won’t terminate immediately but will give the parent a limited amount of time to complete services. The agency can also choose to withdraw the termination petition.

‘You’d Better Get Busy’

But in most cases I heard when I was a full time judge in Virginia, the agency filed for termination because the parent was not doing much of anything to reunite with the child. If termination was filed, I would tell parents, “The agency is not kidding. They have brought this case because they think they can prove that you have not done what you were supposed to do. If you’re ever going to do something, now is the time to do it. You’d better get busy.”